My wife and I have lived in a house in MA for the last 12 years. Her father built the house in the 50’s and either he or she has lived in the house ever since.
6 months ago the house next door changed hands. About the 6th time in the 12 years we have been here.
The new owner recently had a survey done that shows the border between his house and mine is about 2 to 4 feet closer to us then previously thought.
He wants to plant trees, build a driveway, etc. on that new-found property of his.
I need to make sure that this new border is correct and I do not have a lot of money to spend.
Another wrinkle- the border that we have thought has existed all this time lies about 4 feet on our side of a brook. For the life of the house we have always treated the land up to the brook as ours, i.e., landscaping, lawn care, etc.
Now the survey from the new owner shows that our border is supposedly about 8 foot this side of the brook.
Is the onus on me now to spend $600 to $900 for a new survey (estimate that I received)? Is there a less expensive way of resolving this? Can I/should I use adverse possession to grab all of the land up to the brook?
The thing that frustrates me the most is how after 50 years, all of a sudden there is a survey that says all of what I and the previous abutters have thought is supposedly wrong.
You may want to get some legal advice. In some jurisdictions, 50 years of agreement will override the legally-defined boundaries.
As to how it happens, it happens all the time. Joe and Jane are neighbors, and one summer Joe says, "Jane, don’t worry about crossing that brook to mow the grass on this side, I’ll take care of it. Fifty years later, Joe’s heirs are shocked to discover that they don’t own that land.
You definitely need a RE lawyer, and it is going to cost you some $ to resolve this dispute.
Sorry.
Just curious - he had a survvey AFTER moving in? Is this rural country with irregular borders? Were surveys done before? Can you locate any permanent markers?
Adverse possession and/or easement are possibilities, given the length of time, as well as open and notorous use by you and your dad, and I believe the new purchaser takes subject to all such pre-existing encombrances, but this is certainly not my bailiwick.
Is your father-in-law still alive? Wonder what his recollection is?
I would notify the neighbor immediately, and in writing (certified mail), that you wish to resolve this before he begins any construction. Then start calling lawyers.
Time to dig up your title insurance policy. Which you did get if you borrowed money from a bank for the house. This is exactly what title insurance is for. Usually it will pay for the lawyers to sort things out.
All a survey can tell you is the location of the recorded legal description. A survey cannot tell you want you own or just purchased.
For example, I just purchased 40 acres out of an unbroken 160 acre section. The seller’s survey was from a 100 year old fence line which was the assumed property line. Well come to find out the survey was wrong. The fence is actually about 10 feet from the property line. Our surveyor said the person on the other side of the fence has a good case in using the existing fence as the property line due to the length time it has been used. He also told me that if we cannot come to an agreement it will be up to a judge to decide who owns what.
So don’t take the survey as the last word, get a lawyer and then try to come to an agreement with your neighbor, because you both would be taking a chance in count.
If title insurance is in force, it may provide a lawyer.
If there is no title insurance:
The important thing to prevent the neighbor claiming the property.
Q for lawyers:
If the OP purchases a car and parks it in the disputed area, will this force the neighbor to prove title before he can have the car removed?
(obviously, a stack of bricks could also be used, but the sanctions auto theft might be enough to persuade the neighbor to get his law straight before acting)
Again, not my specialty, but a certified letter - especially from a lawyer - would be just about as effective, and a bit cheaper, than buying a car. Could try to draft something to file - a la a lien. Tho not certain what form that would need to take. Again, cheaper than a car, and signals intent to resolve matters through proper channels.
OP has not described this as a situation requiring drastic steps - as of yet. And, whatever the results, he’s gonna end up living next to the neighbor. No reason to ramp up the confrontation more quickly than necessary.
Also, I suspect “self-help” efforts might not be viewed favorably by any decision-makers/arbitrators coming into the scene later.
Ask to see the “survey”. As long as it was done by a licensed, articled surveyor, you’d be wasting your money. Its already been done, why get another one? It’s not like a Doctor that may have several choices as to what your ailment is, this is measuring with fixed points.
I found out my property boundaries by asking my city. They have a map of which property line is mine & which is my neighbors & I pointed out to him & showed him by measuring that he put his fence on my property but he didn’t seem to care.
I strongly disagree. I have seen surveys that differ by amounts comparable to the OPs. I urge the OP to get a new survey of the part in dispute. It really shouldn’t be that expensive.
If the neighbor shows up with a construction crew ready to build a driveway, you can either have a guard 24/7 or a court injunction - if cost is an issue, a clunker is cheaper than a guard, and would place the onus on the neighbor to get an order to remove the car.
I strongly agree with FTG’s strong disagreement. There is a certain amount of subjective interpretation in most surveys, and there are also several different types of surveys (i.e. location or boundary surveys) with different levels of accuracy.
If the deed is specified by metes and bounds (“from a point located (wherever), proceeding along a line at 184[sup]o[/sup] 18’ 30” for a distance of 210.5 feet, then turning…" (years since I’ve seen one), and the nearest section marker is 5 miles away, then YES equally competant surveyors can disagree by several feet - especially if they begin at different markers.
(I was on a crew that ran a line through some of the most worthless land I have ever seen - because of an old family feud. Hey, it paid the rent (the survey cost more than the land was worth))
(metes and bounds are common in rural areas - in urban areas, the deeds specify plat/block/lot - much easier to establish lines.)
Unfortunately, if you read the title insurance policy, it will exclude “questions of survey.” In new construction, a lender may ask for an extended policy, covering questions of survey, but that’s usually used only for large commercial sites.
I don’t know about adverse possession. The possession must be open and hostile. Since there was a mistake of fact, if there were one, it wouldn’t be hostile. You definitely need a lawyer who is well versed in real estate problems.
A difference between old surveys and newer surveys can be caused by temperature changes. When surveying a metes & bounds description, rods, chains, and links were used, and they changed size with temperature. However, this shouldn’t cause that large a discrepancy.
Temp. fluctuations are not the only (nor even signifigant) source of error - when running a line 5 miles, usint a 100’ chain, being off 1/2" on each leg will create a large cumulative error. Additionally, if the transit must be turned (as in following a winding road), the angular measurement will throw your distance and direction off.
Then there is the matter of which marker you use as a starting point - their locations aren’t perfect to begin with.
Anyway, until we know if this is a metes & bounds vs block/lot survey, speculation is not going to solve the problem.
To recap: GET A LAWYER
and, as I recall, the standard for adverse possession is ‘open and notorious’ - however ‘notorious’ is defined.